MIGRATION AMENDMENT (BRIDGING VISA CONDITIONS) BILL 2023 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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MIGRATION AMENDMENT (BRIDGING VISA CONDITIONS) BILL 2023

2022-2023 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES MIGRATION AMENDMENT (BRIDGING VISA CONDITIONS) BILL 2023 EXPLANATORY MEMORANDUM (Circulated by authority of the Minister for Immigration, Citizenship and Multicultural Affairs, the Honourable Andrew Giles MP)

MIGRATION AMENDMENT (BRIDGING VISA CONDITIONS) BILL 2023 GENERAL OUTLINE The Migration Amendment (Bridging Visa Conditions) Bill 2023 (the Bill) amends the Migration Act 1958 (the Migration Act) and the Migration Regulations 1994 (the Migration Regulations) to ensure non-citizens for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future and who are therefore not capable of being subject to immigration detention under subsections 189(1) and 196(1) of the Migration Act following the High Court's orders of 8 November 2023 in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ) and who do not otherwise hold a visa are subject to appropriate visa conditions on any bridging visa granted to them following release. The objective of the Bill is to keep the community safe, and to strengthen relevant migration laws to respond to the decision in NZYQ. The Australian Government is taking action to strengthen the BVR framework to support the effective management of the migration status of members of this cohort, and to reinforce expectations about the purpose of the BVR, including reporting and notification obligations. The BVR permits, eligible non-citizens whose removal is currently not reasonably practicable to lawfully remain in Australia pending removal. The Department of Home Affairs (the Department) may use a BVR where a non-citizen in the NZYQ-affected cohort has no entitlement to remain in Australia and is and is unlikely to qualify for any other visa. The BVR includes requirements for the person to engage and cooperate with the Department to facilitate their removal from Australia. The current requirements for BVR holders are being further strengthened through this Bill to reflect the current environment and the expectations of the Australian community in respect to the management of non-citizens holding BVRs, in light of the implications of the orders in NZYQ. Amendments to the BVR are required to ensure the effective management of this aspect of the migration system, including recognising that non-citizens with a history of serious criminal offending, including but not limited to serious offences committed in Australia, require appropriate and proportionate management while their migration status is being resolved. The Australian community expects well-managed migration and reasonably expects non-citizens will cooperate with removal planning and immigration processes. The Australian community expects non-citizens not to engage in behaviour contrary to resolving their immigration status, and the Australian community expects that non-citizens in Australia abide by Australia's laws. It is also recognised that failure to comply with Australia's laws affects the Australian community and impedes the Government's ability to effectively manage the person's removal from Australia. The Bill amends a number of existing visa conditions and establishes a number of new visa conditions that will be imposed as mandatory conditions on a BVR. The conditions will supplement a number of visa conditions: 8401 The holder must report at the time or times; and at a place or in a manner; specified orally or in writing by the Minister from time to time. 2

8542 must report in person for removal from Australia in accordance with verbal or written instructions given by the Minister 8543 Must attend at a place, date and time specified orally or in writing by the Minister in order in order to facilitate efforts to arrange and effect his or her removal from Australia. 8561 If the holder is directed orally or in writing, by the Minister to attend, at a specified place, on a specified day and at a specified time, an interview that relates to the holder's visa (including an interview with the Australian Security Intelligence Organisation), the holder must comply with the direction. 8612 Notify the department of the full name, and date of birth, of each person who ordinarily resides with the holder at the holder's residential address 8613 must obtain the Minister's approval before commencing to perform work, or a regular organised activity, involving more than incidental contact with a minor or any other vulnerable person 8614 must notify Department of any travel interstate or overseas by the holder at least 7 working days before undertaking the travel. 8615 must, notify the Department of the details of the holder's association with, or membership of, any organisation (other than an organisation formed for a purpose of engaging in communications on governmental or political matters) 8616 must notify the Department of the details of any contact with the following: (a) any individual, group or organisation that is alleged, or is known by the holder, to be engaging in criminal or other illegal activities; (b) any individual, group or organisation that has previously engaged in, or has expressed an intention to engage in, criminal or other illegal activities. 8617 must notify Department of the following matters: (a) the holder receives, within any period of 30 days, an amount or amounts totalling AUD10 000 or more from one or more other persons; (b) the holder transfers, within any period of 30 days, an amount or amounts totalling AUD10 000 or more to one or more other persons; (c) the holder's banking arrangements change 8618 If the holder incurs a debt or debts totalling AUD10 000 or more 8619 If requested by the Minister orally or in writing, the holder must provide evidence of their current financial circumstances 8620 Must remain at the notified residential address of the holder 10pm and 6 am each day or between such other times as specified orally or in writing by the Minister 3

8621 Must wear a monitoring device at all times The Bill will establish new criminal offence provisions, in relation to certain conduct by non-citizens in the NZYQ affected cohort that constitutes a serious breach of visa conditions, relating to the failure to comply with certain requirements to notify, report to the Minister or the Department, where required to do so under certain mandatory conditions imposed on the BVR. These offences are vital to ensuring that non-citizens in the NZYQ- affected cohort remain appropriately engaged with the Department and the Australian Border Force, and cooperate in arrangements to facilitate their removal from Australia. The new offence provisions that would provide a proportionate response in order to effect re-engagement of the non-citizen with the Department. Attempts to deliberately and repeatedly evade contact with, and monitoring by, the Department of Home Affairs demonstrates a disregard and contempt for Australian laws. This behaviour is contrary to the Australian Community's expectations that a non-citizen abide by Australia's laws and that non-citizens will engage with the Department to resolve their migration status. A criminal offence is the most effective means of response to potential serious breaches of visa conditions within the NZYQ-affected cohort, because it is clear that the normal consequences of breaching visa conditions will not apply to this cohort. Ordinarily, a visa holder who does not comply with a condition of their visa may be considered for visa cancellation on the basis of that breach - and if cancelled, would be liable to be detained as an unlawful non-citizen. For the NZYQ-affected cohort, immigration detention is not an available option where visa cancellation results in them being an unlawful non-citizen. As such, the prospect of visa cancellation for a breach of a visa condition is not an effective deterrent against non-compliance with reporting requirements. Establishing an offence specifically for NZYQ-affected BVR holders and future BVR holders granted without application by the Minister, makes it clear that compliance with requirements to report to the Department and to notify the Department of changes in circumstances, including address, household, employment and other matters ensures the person remains engaged with the Department. Importantly, the offence encourages compliance with relevant visa conditions and ongoing cooperation in arrangements relating to removal from Australia. The Bill proposes changes that will apply to those of the NZYQ affected cohort already granted the BVR to cease those visas and replace them, by operation of law, with new BVRs with apply stronger mandatory conditions. Those in the NZYQ affected cohort who are released from immigration detention in the future will also be granted the new BVR with the new suite of conditions. The Bill makes other necessary consequential amendments to the Migration Act and the Migration Regulations to provide for the grant of further BVRs to members of the NZYQ-affected cohort on subsequent occasions and to make it clear that a replacement BVR the preceding BVR. These amendments make it clear that non-citizens in the NZYQ-affected cohort who are granted BVRs without application, by the Minister for Immigration, Citizenship and Multicultural Affairs, are required to hold the visa and are subject to the suite of mandatory conditions while they reside in the Australian community. These individuals, by Act of 4

parliament, will be required to abide by those conditions on their BVRs and will face criminal consequences if they fail to do so. These amendments are necessary in response to the implications of the decision in NZYQ to support the effective management of NZYQ affected non-citizens subject to release in the Australian community, and to maintain community safety. CONSULTATION The Department has undertaken consultation with several Commonwealth agencies in the course of developing the Bill, including the Australian Government Solicitor, the Attorney- General's Department and the Department of the Prime Minister and Cabinet. FINANCIAL IMPACT STATEMENT The amendments in the Bill have a low financial impact. STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A statement of compatibility with human rights has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment A. 5

COMMON ABBREVIATIONS AND ACRONYMS Abbreviation or acronym Meaning AAT Administrative Appeals Tribunal AAT Act Administrative Appeals Tribunal Act 1975 ABF Australian Border Force Acts Interpretation Act Acts Interpretation Act 1901 The Attorney-General's Department's Guide to Framing AGD Framing Guide Commonwealth Offences, Infringement Notices and Enforcement Powers APP (or APPs) The Australian Privacy Principles, under the Privacy Act 1988 Bill Migration Amendment (Bridging Visa Conditions) Bill 2023 BVR Subclass 070 (Bridging (Removal Pending)) visa Crimes Act Crimes Act 1914 Criminal Code Schedule 1 to the Criminal Code Act 1995 Department Department of Home Affairs Legislation Act Legislation Act 2003 Migration Act Migration Act 1958 Migration Regulations Migration Regulations 1994 NZYQ v Minister for Immigration, Citizenship and Multicultural NZYQ Affairs & Anor (S28/2023) Non-citizens released from immigration detention following the NZYQ-affected cohort High Court judgment on 8 November 2023 in NZYQ Regulatory Powers Act Regulatory Powers (Standard Provisions) Act 2014 6

MIGRATION AMENDMENT (BRIDGING VISA CONDITIONS) BILL 2023 NOTES ON INDIVIDUAL CLAUSES Section 1 Short title 1. Section 1 provides that the short title of the Bill, once enacted, will be the Migration Amendment (Bridging Visa Conditions) Act 2023. Section 2 Commencement 2. Section 2 provides that the Bill, once enacted, will commence on the day after the Act receives the Royal Assent. Section 3 Schedules 3. This section provides that legislation specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned. This section also provides that any other item in a Schedule to the Act has effect according to its terms. 4. The note under section 3 makes it clear that amendments to provisions of the Migration Regulations made by Schedule 2 to the Bill do not prevent further amendments of those provisions by any regulations that may be made later in accordance with the Migration Act. This is as provided by subsection 13(5) of the Legislation Act. 7

SCHEDULE 1 Amendments of the Act Migration Act 1958 Item 1 Subsection 5(1) (at the end of the definition of visa period) 5. This item inserts a note at the end of the definition of 'visa period' in subsection 5(1) of the Migration Act. The intention is to direct attention to the effect of subsection 68(6) of the Act on the visa period for a BVR which is ceased in accordance with subsection 68(5). 6. Subsection 68(3) provides that a visa can only be in effect during the visa period for the visa. 7. Subparagraph (b)(ii) of the definition of 'visa period' in subsection 5(1) states that the visa period for a bridging visa ends when the visa ceases to be in effect otherwise than under subsection 82(3). New subsection 68(6) provides that a visa ceased in accordance with new subsection 68(5) is taken to have ceased 'otherwise than under subsection 82(3)', engaging subparagraph (b)(ii) of the definition of 'visa period'. The consequence is that the visa period for a BVR ends when ceased in accordance with new subsection 68(5) such that there is no possibility of the BVR being in effect. Item 2 At the end of section 68 8. This item inserts new subsections 68(5) and 68(6) at the end of section 68 of the Migration Act. 9. Section 68 of the Migration Act outlines when a visa is in effect. Subsection 68(4) provides that when a bridging visa has ceased to be in effect under subsection 82(3), that bridging visa will come into effect again if the non-citizen: • does not hold a substantive visa; and • either: o does not hold any other bridging visa; or o holds a bridging visa that is determined by the regulations to be less beneficial than the first-mentioned bridging visa. 10. Subsection 82(3) provides that a bridging visa ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) for the non-citizen comes into effect. 11. Subsection 68(4) thereby operates to ensure that a bridging visa, which has ceased to be in effect because another visa was granted, will automatically override any other bridging visa with less favourable conditions that the non-citizen holds. 12. New paragraphs 68(5)(a) and (b) set out the two criteria for 'switching off' the application of subsection 68(4). 8

• Paragraph 68(5)(a) requires that the first BVR ceases to be in effect under subsection 82(3) of the Migration Act because another BVR (the second BVR) for the non-citizen comes into effect after the commencement of new subsection 68(5). • Paragraph 68(5)(b) requires that, at the time of granting the second BVR, there was no real prospect of the removal of the non-citizen from Australia becoming practicable in the foreseeable future. 13. The effect of new subsection 68(5) if these criteria are satisfied is that a BVR granted to a non-citizen will not be reactivated by subsection 68(4) when a subsequent BVR is granted. This will ensure that, if a non-citizen is granted a second BVR with different conditions to the first, the first BVR will cease and the second BVR will be in effect. 14. New subsection 68(6) provides that, for the purposes of subparagraph (b)(ii) of the definition of 'visa period' in subsection 5(1) of the Migration Act, the first visa is to be taken to have ceased to be in effect otherwise than under subsection 82(3). 15. The effect of subsection 68(6) is therefore that the visa period of the first BVR ends when the second BVR is granted. 16. The note under new subsection 68(6) clarifies that the visa period for the first visa ends when the second visa comes into effect. Item 3 At the end of section 73 17. This item adds a note to the end of section 73 of the Migration Act, noting that a bridging visa may be granted to an eligible non-citizen on application, or without an application for the visa being, made by the eligible non-citizen. The note refers to section 45, which provides that, subject to the Act and regulations made under the Act, a non-citizen who wants a visa must apply for a visa of a particular class. The note clarifies that section 45 is subject to section 73. The purpose of this note is to confirm that section 73 is a provision of the Act to which section 45 is subject. That is, the grant of a bridging visa under section 73 does not require an application by a non-citizen Item 4 At the end of Subdivision AF of Division 3 of Part 2 18. This item adds new sections 76A, 76B, 76C, 76D and 76E. 19. New section 76A provides for the cessation, and granting by operation of law of BVRs in certain circumstances. 20. The purpose of new section 76A is to cease a BVR granted to a non-citizen within the NZYQ-affected cohort without application between 8 November 2023 and the commencement of this provision and to grant a new BVR in respect of which conditions amended or newly prescribed by this Bill are imposed. 21. New sections 76B, 76C and 76D provide for offences where a non-citizen within the NZYQ-affected cohort breaches certain conditions imposed in respect of a BVR that comes into effect after commencement: 9

22. New sections 76B, 76C and 76D provide for offences where a non-citizen within the NZYQ-affected cohort breaches certain conditions imposed in respect of a BVR that comes into effect after commencement: • New section 76B provides an offence in respect of the breach of mandatory monitoring conditions. • New section 76C provides an offence in respect of failure to comply with a curfew condition. • New section 76D provides an offence in respect of failure to comply with a requirement relating to the wearing of a monitoring device. 23. The purpose of these new offences is to promote compliance with visa conditions, provide a means to manage the non-citizen's migration status while in the community and promote compliance with arrangements for removal from Australia once practicable. 24. The purpose of new section 76B is to promote compliance with visa conditions, provide a means to manage the non-citizen's migration status while in the community and promote compliance with arrangements for removal from Australia once practicable. Section 76A 25. New subsection 76A provides for situations where a BVR is ceased by operation of law and a second BVR is granted by operation of law. At the same time as the second BVR is granted, mandatory conditions attaching to that BVR are imposed to ensure the non-citizen's continued engagement as the Department takes steps towards the non- citizen's for removal from Australia. Scope of application 26. New subsection 76A(1) sets out all the circumstances in which section 76A will apply to a non-citizen. • Paragraph 76A(1)(a) requires that the non-citizen be a holder of a BVR immediately before the commencement of new section 76A. • Paragraph 76A(1)(b) requires that the first BVR was granted to the non-citizen without an application being made by, the non-citizen. • Paragraph 76A(1)(c) requires that the first BVR was granted during the period that starts on 8 November 2023 and ends immediately before the commencement of new section 76A. • Paragraph 76A(1)(d) requires that, at the time the BVR was granted, there was no real prospect of the removal of the non-citizen from Australian becoming practicable in the reasonably foreseeable future. 27. The effect of new subsection 76A(1) is to confine the cessation to a BVR held by a non-citizen who is part of the NZYQ-affected cohort. 10

Deemed cessation of first BVR 28. New subsection 76A(2) provides that despite any other provision of the Migration Act or regulations made under that Act, the first BVR ceases to be in effect immediately after the commencement of new section 76A. 29. Section 82 of the Migration Act outlines circumstances in which a visa ordinarily ceases. Subsection 82(9) provides that section 82 does not affect the operation of other provisions of the Migration Act under which a visa ceases to be in effect. 30. New subsection 76A(2) is such a provision, the effect of which is to cease the first BVR immediately after commencement of the section. The purpose of this is to ensure that a BVR to which this section applies and which is not subject to mandatory conditions amended or newly prescribed by this Bill will cease as part of the granting of a new BVR with those conditions attached 31. The note under new subsection 76A(2) confirms that the visa period for the first BVR ends when it ceases to be in effect under new subsection 76A(2). 32. Deemed grant of second BVR 33. New subsection 76A(3) provides that despite any other provision of the Migration Act or regulations made under that Act: • the non-citizen is taken, immediately after the first BVR ceases to be in effect under new subsection 76A(2), to have been granted another BVR; and • the second BVR is taken to come into effect as soon as it is taken to be granted under this subsection. 34. The effect of new subsection 76A(3) is that immediately after the first BVR is ceased under new subsection 76A(2), a second BVR, subject to the full suite of mandatory conditions provided for by this Bill, is deemed to be granted. 35. The note under new subsection 76A(3) confirms that the visa period for the second BVR begins when it is taken to be granted. Continued application of law to second BVR 36. New subsection 76A(4) provides that the Migration Act and the regulations made under the Act apply, after the commencement of new section 76A, in relation to the second BVR in the same way as they would apply in relation to a BVR granted under the regulations. Conditions attaching to grant of second BVR 37. Without limiting new subsection 76A(4), new subparagraph 76A(5) identifies specifies the provisions in the Migration Regulations that apply to the second BVR at the time the second BVR is granted. 11

• Paragraph 76A(5)(a) specifies a provision specifying when a BVR is in effect. • Paragraph 76A(5)(b) specifies a provision prescribing that a BVR permits the visa holder to remain in Australia. • Paragraph 76A(5)(c) specifies a provision specifying the mandatory conditions to which the second BVR taken to be granted under new paragraph 76A(3)(a) is subject. 38. The mandatory conditions that apply to the second BVR are the mandatory conditions specified in substituted clause 070.611 and clause 070.612 of Schedule 2 to the Migration Regulations. That is, those conditions which 'must be imposed' in respect of the visa. Section 76B 39. New section 76B makes it a criminal offence for BVR holders in the NZYQ-affected cohort to breach certain mandatory conditions--that is, conditions which 'must be imposed' in respect of the visa. The purpose of new section 76B is to promote compliance with relevant visa conditions and ongoing cooperation in arrangements relating to removal from Australia. Specifically, the provisions are directed at ensuring that the person is available for removal (in the event that removal becomes practicable in the reasonably foreseeable future), and that the person does not pose a danger to the community in the meantime 40. The purpose of a BVR is to resolve a non-citizen's immigration status pending removal from Australia. For this reason, mandatory conditions granted with the BVR focus on reporting and monitoring related obligations in order to manage a non-citizen's removal from Australia. 41. In ordinary circumstances, the main recourse for breach of mandatory conditions applying to a visa would be cancellation. Cancellation is not effective for breaches of mandatory conditions applying to a BVR granted to a non-citizen in the NZYQ-affected cohort. That is because the a non-citizen in the NZYQ-affected cohort cannot be detained or removed from Australia, such that the only options are leaving the non- citizen as an unlawful non-citizen or granting a further visa (in the event they are eligible). 42. New section 76B only applies to non-citizens holding the BVR who breach specific mandatory conditions that require engagement with the Department to notify, report, or attend in specified ways, at specified times and places. The offence provides a strong incentive for compliance with obligations to report to the Department and to actively participate in processes to facilitate their removal from Australia, if practicable. 43. The criminal offence ensures that non-citizens in the NZYQ-affected cohort and future BVR holders granted without application by the Minister are aware that there are real consequences for non-compliance with those obligations. It underpins the integrity of the BVR and the conditions placed on members of the cohort given the lack of enforcement options otherwise available under the Migration Act. There therefore needs to be a strong incentive to comply with those conditions. 12

44. Attempts to evade contact with, and monitoring by, the Department including the ABF demonstrates a disregard and contempt for Australian laws. This behaviour is contrary to the Australian Community's expectations that a non-citizen abide by Australia's laws and that non-citizens will engage with the Department to resolve their migration status. This conduct hinders the Department's ability to provide oversight and management of a non-citizen's ongoing stay in the Australian community and to continue to assess whether removal is practicable. 45. This is not a strict liability offence. Conviction will only follow due consideration of the circumstances of the case, including satisfaction of the relevant fault elements according to the criminal standard of beyond reasonable doubt. A court will be empowered to impose an appropriate sentence reflecting the seriousness of the breach of conditions, having regard to the ordinary considerations which apply in the sentencing process. 46. The proposed new offence is the most effective means of response to potential serious breaches of visa conditions within the NZYQ-affected cohort, because it is clear that the normal consequences of visa cancellation is not effective for this cohort. It is therefore reasonable that in the absence of this, the Department has the means to bring a non- compliant BVR holder back in line with the law and to ensure that the BVR holder continues to do everything possible to facilitate their removal from Australia. The criminal offence enlivens criminal prosecution and the possibility of criminal detention, but most importantly provides a proportionate response in order to incentivise the re- engagement of the person with the Department. Offence 47. New subsection 76B(1) provides that a non-citizen commits an offence if that person (a) holds a BVR, (b) at the time the BVR was granted there was no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future, (c) the BVR is subject to a monitoring condition, and (d) the non-citizen fails to comply with a requirement of the monitoring condition. 48. This offence is intended to reflect the seriousness of a breach of conditions that are intended to ensure the Department including the ABF remains aware of the non-citizen's location, activities and associations, and that the visa holder remains engaged in arrangements to manage their stay in, and when practicable, removal from, Australia. 49. New paragraphs 76B(1)(a) and (b) limit the application of this offence to non-citizens who are part of the NZYQ-affected cohort. Therefore, this offence does not apply to all BVR holders.. 50. New paragraphs 76B(1)(c) and (d) limit the offence to failing to comply with a requirement of any monitoring condition, as defined in new subsection 76B(4), to which the BVR is subject. 51. The penalty for this offence is five years imprisonment, 300 penalty units determined in accordance with section 4B of the Crimes Act, or both. 52. The significant maximum penalty imposed ensures that the Court has the appropriate discretion to be able to hand down adequate penalties where the material circumstances provide a clear need to do so with regard to all the relevant circumstances. 13

53. In reaching a decision, it is open to the Court to take into account a wide range of factors, both aggregating and mitigating, to inform its view. Factors such as nature and severity of the non-compliance, how much time has passed since the reporting requirement was issued, repeated breach of visa conditions, degree of contact with the Department, and the degree of steps taken to remediate non-compliance, or ensure future compliance with the requirement, are examples of factors that the Court may wish to take into consideration. It is a matter for the Court to consider the appropriate penalty after a finding of guilt. Application of the Criminal Code 54. Section 4A of the Migration Act provides that Chapter 2 of the Criminal Code applies to all offences against the Act. This includes the offence in new subsection 76B(1). Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility, including the default fault elements in Division 5 and the defences of general application. 55. The fault elements for this offence are those set out in section 5.6 of the Criminal Code. This is consistent with AGD Framing Guide, which relevantly provides that the default elements in section 5.6 of the Criminal Code should apply unless there is a sound reason to depart from them. • The default fault element for paragraphs 76B(1)(a), (b) and (c) is recklessness. • The default fault element for paragraph 76B(1)(d) is intention. 56. Consistent with principles in the AGD Framing Guide, this is not an offence of strict or absolute liability. Reasonable excuse 57. New subsection 76B(2) provides that the offence will not apply if the non-citizen has a reasonable excuse. 58. The note under new subsection 76B(2) provides that the non-citizen will bear the evidential burden of establishing they have a reasonable excuse consistent with subsection 13.3(3) of the Criminal Code. An evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the non-citizen discharges that evidential burden, the prosecution must disprove that matter beyond reasonable doubt. Application of Crimes Act 59. New subsection 76B(3) provides that section 4K of the Crimes Act, which concerns continuing offences, does not apply to an offence against new subsection 76B(1). This means that an ongoing breach of a condition to do an act or thing within a specified period or by a specified time will constitute a single offence, rather than multiple offences for each day in which there is a failure to comply. 60. The nature of the offence does not require it to be a continuing offence in accordance with subsections 4K(1) and (2) of the Crimes Act. Instead, the maximum penalty which 14

applies ensures there is sufficient scope for a court to impose a sentence which reflects the severity of the non-compliance. Mandatory conditions 61. New subsection 76B(4) provides that, in new section 76B, a 'monitoring condition' for the purposes of new section 76B as a mandatory condition that requires the BVR holder to do a specified thing and is not a condition prescribed in regulations made under the Migration Act. The specified things are any of the following: • to notify the Minister or Department of specified matters within a specified period or before or by a specified day; • to report at a specified time or times and at a specified place, or in a specified manner; • to attend at a specified place, on a specified day and at specified time. 62. Mandatory condition' is a reference to those conditions which must be imposed in respect of a BVR 63. The relevant mandatory conditions are those conditions specified in clause 070.611 and new subclause 070.612(1) of Schedule 2 to the Migration Regulations. These conditions are 8550, 8551, 8552, 8553, 8554, 8555, 8556, 8560, 8561, 8562, 8563, 8612, 8613 and 8614 8615, 8616, 8617, 8618 and 8619. 64. The conditions captured in new subsection 76B(4) are directed at ensuring that the person is available for removal, in the event that removal becomes practicable in the reasonably foreseeable future. While there is an element of discretion for the Minister and the Department to specify times, places and manner of engagement, the exercise of the discretion must be exercised reasonably. 65. For the purposes of paragraph (b) of the definition of 'monitoring condition' in new subsection 76B(4), a number of conditions are prescribed in new regulation 2.25AC (see item [xxx] of Schedule 2 to this Bill). The effect of this is that the non-compliance with the prescribed conditions could not constitute the offence created by new section 76B. [It is otherwise appropriate to include the ability for the Governor-General to prescribe that a monitoring condition does not to form part of the offence because it is beneficial in reducing the scope of conduct rendered criminal by the offence rather than increasing it and it allows new conditions to be prescribed as they are made through amendments to the Migration Regulations without requiring amendments to the Migration Act. Section 76C 66. New section 76C makes it a criminal offence for BVR holders to breach a condition requiring the person to remain at a notified address for a certain period each day, that is imposed in respect of the visa. New section 76C directed at ensuring that the person is available for removal (in the event that removal becomes practicable in the reasonably foreseeable future), and that the person does not pose a danger to the community in the meantime. 15

Offence 67. New subsection 76C(1) provides that a non-citizen commits an offence if that person (a) holds a BVR, (b) the BVR is subject to a condition requiring the holder to remain, between certain times of day, at a particular address (c) the non-citizen fails to comply with the requirements of the condition. 68. This offence is intended to reflect the seriousness of a breach of this condition for community safety. 69. New paragraphs 76C(1)(a) and (b) limits the application of this offence to BVR holders who are subject to condition 8620. This is a condition which may, not must, be imposed as a condition to which the BVR is subject. Therefore, this offence does not apply to all BVR holders. 70. The penalty for this offence is five years imprisonment or 300 penalty units determined in accordance with section 4B of the Crimes Act, or both. Application of the Criminal Code: 71. Section 4A of the Migration Act provides that Chapter 2 of the Criminal Code (except Part 2.5, which concerns corporate criminal responsibility) applies to all offences against the Act. This includes the offence in new subsection 76C(1). Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility, including the default fault elements in Division 5 and the defences of general application. 72. The fault elements for this offence are those set out in section 5.6 of the Criminal Code. This is consistent with AGD Framing Guide, which relevantly provides that the default elements in section 5.6 of the Criminal Code should apply unless there is a sound reason to depart from them. • The default fault element for paragraphs 76C(1)(a) and (b) is recklessness. • The default fault element for paragraph 76C(1)(c) is intention. 73. Consistent with principles in the AGD Framing Guide, this is not an offence of strict or absolute liability. Reasonable excuse 74. New subsection 76C(2) provides that the offence will not apply if the non-citizen has a reasonable excuse. 75. The note under new subsection 76C(2) provides that the non-citizen will bear the evidential burden of establishing they have a reasonable excuse consistent with subsection 13.3(3) of the Criminal Code. An evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the non-citizen discharges that evidential burden, the prosecution must disprove that matter beyond reasonable doubt. Section 76D 16

76. New section 76D makes it a criminal offence for BVR holders in the NZYQ-affected cohort to breach electronic monitoring conditions imposed in respect of the visa through the creation of four separate offences in new subsections 76D(1), (2), (3) and (4). The purpose of new section 76D is to promote compliance with relevant visa conditions so that the person does not pose a danger to the community in the meantime. Offences 77. New subsection 76D(1) provides that a non-citizen commits an offence if that person (a) holds a BVR, (b) the BVR is subject to a condition requiring the holder to wear a monitoring device at all times, and (c) the non-citizen fails to comply with the requirements of the condition. 78. New subsection 76D(2) provides that a non-citizen commits an offence if that person (a) holds a BVR, (b) the BVR is subject to a condition requiring the holder to allow an authorised officer to fit, install, repair or remove the holder's monitoring device or any related monitoring equipment for that device, and (c) the non-citizen fails to comply with the requirements of the condition. 79. New subsection 76D(3) provides that a non-citizen commits an offence if that person (a) holds a BVR, (b) the BVR is subject to a condition requiring the holder to take any specified steps, and any other reasonable steps, to ensure that the holder's monitoring device or any related monitoring equipment for that device remain in good working order, and(c) the non-citizen fails to comply with the requirements of the condition. 80. This offence is intended to reflect the seriousness of a breach of conditions for community safety. 81. New paragraphs 76D(1)(a) and (b), (2)(a) and (b), (3)(a) and (b) and (4)(a) and (b) limit the application of this offence to BVR holders who are subject to condition 8621 which may, not must, be imposed as a condition to which the BVR is subject. Therefore, this offence does not apply to all BVR holders. 82. Subsection 76D(6) defines 'monitoring device' to mean any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object. The subsection defines ' related monitoring equipment', for a monitoring device, to mean any electronic equipment necessary for operating the monitoring device. 83. The penalty for this offence is five years imprisonment or 300 penalty units determined in accordance with section 4B of the Crimes Act, or both. Application of the Criminal Code 84. Section 4A of the Migration Act provides that Chapter 2 of the Criminal Code (except Part 2.5, which concerns corporate criminal responsibility) applies to all offences against the Act. This includes the offences in new subsection 76D(1), (2), (3) and (4). Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility, including the default fault elements in Division 5 and the defences of general application. 17

85. The fault elements for this offence are those set out in section 5.6 of the Criminal Code. This is consistent with AGD Framing Guide, which relevantly provides that the default elements in section 5.6 of the Criminal Code should apply unless there is a sound reason to depart from them. • The default fault element for paragraphs 76D(1)(a) and (b), (2)(a) and (b), (3)(a) and (b), and (4)(a) and (b) is recklessness. • The default fault element for paragraphs 76D(1)(c), (2)(c), (3)(c) and (4)(c) is intention. 86. Consistent with principles in the AGD Framing Guide, this is not an offence of strict or absolute liability. Reasonable excuse 87. New subsection 76D(5) provides that the offences in subsections will not apply if the non-citizen has a reasonable excuse. 88. The note under new subsection 76D(5) provides that the non-citizen will bear the evidential burden of establishing they have a reasonable excuse consistent with subsection 13.3(3) of the Criminal Code. An evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the non-citizen discharges that evidential burden, the prosecution must disprove that matter beyond reasonable doubt. 89. Application of Crimes Act 90. New subsection 76D(4) provides that section 4K of the Crimes Act, which concerns continuing offences, does not apply to an offence against new subsections 76D(4. This means that an ongoing breach of a condition to do an act or thing within a specified period or by a specified time will constitute a single offence, rather than multiple offences for each day in which there is a failure to comply. 91. The nature of the offence does not require it to be a continuing offence in accordance with subsections 4K(1) and (2) of the Crimes Act. Instead, the maximum penalty which applies ensures there is sufficient scope for a court to impose a sentence which reflects the severity of the non-compliance. Section 76E 92. New subsection 76E provides for natural justice in respect of certain decisions to grant a BVR subject to prescribed conditions. It provides a mechanism for the visa holder to make representations for grant of a second BVR without any one or more of those conditions and for the Minister to decide whether or not to grant the second BVR under a prescribed provision in the Migration Regulations. 18

93. New subsection 76E(1) provides the range of decisions to which the section applies. It provides that it is limited to decisions to grant a BVR (a) which is subject to one or more prescribed conditions and (b) at the time the first visa is granted, there is no real prospect of the removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future. 94. The purpose of new subsection 76E(1) is to limit the decisions to which the new section 76E applies to those in respect of non-citizens who are part of the NYZQ-affected cohort. 95. New subsection 76E(2) provides that, for the avoidance of doubt, the rules of natural justice do not apply to the making of the decision. This is intended to make clear on the face of the provision that a decision to grant a BVR without application in these circumstances is not subject to the 'hearing rule', being the administrative law rule that requires a decision-maker to afford a person an opportunity to be heard before making a decision affecting their interests. The reference to 'for avoidance of doubt' is included to avoid any suggestion that, but for s 76E(2), natural justice would apply to the making of the decision. 96. New subsection 76E(3) requires the Minister, as soon as practicable after making a decision mentioned in subsection 76E(1), to give the non-citizen a written notice setting out the decision and any other information prescribed in the Migration Regulations and invite the non-citizen to make representations within the period and in the manner specified by the Minister, as to why the first visa should not be subject to one or more of the conditions prescribed for the purposes of paragraph 76(1)(a). The Minister is to effect notification in the way the Minister considers appropriate in the circumstances. 97. New subsection 76E(4) provides for the Minister to decide whether to grant the non- citizen a second BVR under a prescribed provision of the regulations after the non- citizen has made representations in response to the invitation given under subsection 76E(3). 98. The Minister may only grant a second BVR through this mechanism if the non-citizen has made representations in accordance with the invitation and the Minister is satisfied that there are compelling and compassionate reasons to grant the second BVR and it is not contrary to the public interest to do so. 99. The Minister may grant a second BVR that is not subject to any one or more of the prescribed conditions. That means that the Minister may still prescribe any number of prescribed provisions without prescribing all of them in connection with grant of a second BVR through this mechanism. The Minister may also substitute one prescribed condition for another. 100. Grant of a BVR through this mechanism occurs under a provision prescribed in the Migration Regulations. This is intended to mean that the grant functionally occurs under that prescribed regulation, as opposed to subsection 76E(4) forming a new power to grant a BVR. 19

101. New subsection 76E(5) requires the Minister, as soon as practicable after making a decision mentioned in subsection 76E(4), to give the non-citizen a written notice setting out the decision and any other information prescribed in the Migration Regulations. Item 5 At the end of paragraph 338(4) 102. This item inserts new paragraph (c) at the end of subsection 338(4) of the Migration Act. Section 338 defines the expression 'Part 5-reviewable decision' by identifying which decisions are reviewable under Part 5. Subsection 338(4) presently specifies certain decisions to refuse to grant, or cancel, a bridging visa are Part 5-reviewable decisions. 103. New paragraph 338(4)(c) specifies a decision to refuse to grant a non-citizen a BVR under a provision of the regulations prescribed for the purposes of subsection 76E(4) that is not subject to any one or more conditions prescribed for the purposes of subsection 76E(1). 104. The purpose of new paragraph 338(4)(c) is to make decisions made in accordance with the decision-making mechanism provided for by section 76E(4) amenable to merits review under Part 5 of the Migration Act if the decision made by the Minister results either a decision not to grant a second BVR or a decision to grant a second BVR subject to any one or more prescribed conditions. Item 6 Application provisions 105. This item provides that new sections 76B, 76C, 76D and 76E apply in relation to a BVR that is granted, or taken to have been granted, after the commencement of this item. 106. This ensures that the offence in new section 76B cannot apply in relation to non- compliance with a condition imposed in respect of a BVR granted before commencement. 20

SCHEDULE 2 Amendments of the regulations Part 1 Amendments Migration Regulations 1994 Item 1 Subregulation 2.20(1) 107. This item is machinery in nature. This amendment omits the reference to subregulation (17) and substitutes it with a reference to new subregulation (18) in subregulation 2.20(1). Item 2 At the end of regulation 2.20 108. This item inserts new subregulation 2.20(18) of the Migration Regulations. Regulation 2.20 currently prescribes the classes of person described in subregulations (6) to (12) and (14) to (17) for the purpose of the definition of 'eligible non-citizen' in section 72 of the Migration Act (which deals with persons eligible to be granted a bridging visa). Relevantly, section 73 restricts the grant of a bridging visa to an eligible non-citizen. 109. New subregulation 2.20(18) prescribes a new class of person for the purposes of the definition of 'eligible non-citizen'. It provides that this subregulation will apply to a non-citizen if there is no real prospect of the removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future. 110. The purpose of this amendment is to prescribe the NZYQ-affected cohort as a class of persons for the purposes of the definition of 'eligible non-citizen' in section 72 of the Migration Act. This will ensure that non-citizens within the NZYQ-affected cohort may be granted a BVR if they are not otherwise an eligible non-citizen. Item 3 At the end of Division 2.5 of Part 2 111. This item inserts new regulations 2.25AB and 2.25AC at the end of Division 2.5 of Part 2 of the Migration Regulations. 112. New regulation 2.25AB provides for the grant of a BVR to non-citizens within the NZYQ-affected cohort who hold a BVR. 113. New subregulation 2.25AB(1) applies to a non-citizen who is eligible under new subregulation 2.20(18) and holds a BVR. This clarifies that the purpose of new regulation 2.25AB is to permit the replacing of one BVR with another BVR and to ensure that there is no overlap between existing regulation 2.25AA of the Migration Regulations and new regulation 2.25AB. 114. New subregulation 2.25AB(2) provides that despite anything in Schedule 1 and Divisions 070.2 to 070.4 of Schedule 2 to the Migration Regulations, the Minister may grant an eligible non-citizen a BVR if the Minister is satisfied that, at the time of decision, the non-citizen will abide by the conditions that visa is subject to. If a non- citizen in the NZYQ-affected cohort holds a BVR after this regulation commences, the BVR will cease if another BVR is granted under new regulation 2.25AB. 21

115. New subregulation 2.25AC provides that, for the purposes of paragraph (b) of the definition of 'monitoring condition' in new subsection 76B(4) of the Act, the following conditions are prescribed: • conditions 8617 and 8618, which provides that the holder must notify the Department of certain financial matters within a specified time after the matter occurs. • condition 8619, which provides that the holder must, within a specified period after receiving a request from the Minister, provide evidence of the holder's current financial circumstances. • condition 8621, which provides that the visa holder must wear a monitoring device at all times. 116. The effect of prescribing these conditions is that failure to comply with them cannot form part of the offence in new subsection 76B(1). 117. This item also inserts new regulation 2.25AD. This regulation prescribes the conditions and provisions for the purposes of new subsections 76E(1) and (4) of the Migration Act. 118. New subsection 76E(1) of the Migration Act applies in respect of decisions to grant BVRs which are subject to the prescribed conditions. Conditions 8620 and 8621 are prescribed for this purpose. 119. New subsection 76E(4) of the Migration Act allows the Minister to grant a BVR in certain circumstances under a prescribed provision of the Migration Regulations. 120. This new regulation prescribes regulation 2.25AB for this purpose. This means that a decision by the Minister made in accordance with subsection 76E(4) is made under regulation 2.25AB. If a BVR is granted, it is granted under regulation 2.25AB. Item 4 Subclause 050.211(2) of Schedule 2 121. This adds a reference to new subregulation (18) in subclause 050.211(2) in Schedule 2 of the Migration Regulations. Subclause 050.211 is one of the criteria to be satisfied at the time of application for a Subclass 050 Bridging (General) visa. This ensures that a non-citizen within the NZYQ-affected cohort will not be able to meet the criteria for grant of a Subclass 050 Bridging (General) visa, reflecting the intention that such persons are instead granted a BVR. Item 5 Paragraph 070.511(a) of Schedule 2 122. This item is machinery in nature. This amendment provides that after 'grant' in paragraph 070.511(a) of Schedule 2 to the Migration Regulations, the words 'or as soon as the visa is taken to be granted under paragraph 76A(3)(a) of the Act' are inserted. This reflects the deemed granting mechanism provided by new section 76A. 22

Item 6 Paragraph 070.511(c) of Schedule 2 123. This item repeals paragraph 070.511(c) in Schedule 2 to the Migration Regulations and replaces it with a new paragraph. 124. Subclause 070.511 outlines when a BVR is in effect. Paragraph 070.511(c) provides for when a BVR ceases for the purposes of subsection 82(7A) of the Migration Act, which provides that a bridging visa permitting the holder to remain in Australia until a specified event happens ceases to be in effect the moment the event happens. Currently, the events specified for this purpose are if the Minister gives written notice to the holder that the Minister is satisfied that removal from Australia is reasonably practicable, or, if the holder has breached a condition to which the visa is subject. 125. The purpose of this amendment is to provide for a third ceasing event, being when the Minister grants the holder another BVR under regulation 2.25AB. Item 7 Subclause 070.612(1) of Schedule 2 126. This item repeals paragraph 070.612(1) in Schedule 2 to the Migration Regulations and replaces it with a new paragraph. 127. New paragraph 070.612(1) outlines further mandatory conditions that must be imposed apply on BVR granted under regulation 2.25AA or 2.25AB, or BVR taken to have been granted under subsection 76A(3)(a) of the Migration Act. These conditions are imposed in addition to any condition mentioned in clause 070.611 of Schedule 2 to the Migration Regulations. 128. The purpose of this amendment is to impose new mandatory conditions on BVRs granted to non-citizens in the NZYQ-affected cohort to improve the integrity of the visa, enhance public health and community protection outcomes for the Australian community. Item 8 Subclause 070.612A of Schedule 2 129. This item inserts new clause 070.612A after clause 070.612 in Schedule 2 to the Migration Regulations. 130. New paragraph 070.612A(1) provides that condition 8620 may be imposed in respect of a BVR granted under regulation 2.25AA or 2.25AB. 131. New paragraph 070.612A(2) provides that condition 8621 may be imposed in respect of a BVR granted under regulation 2.25AA or 2.25AB. 132. Conditions 8620 and 8621 are new conditions prescribed by this Bill: • Condition 8620 requires a BVR holder to remain at their 'notified address' between 10 pm and 6 pm each day or between such other times as specified by the Minister. 23

• Condition 8621 requires a BVR holder to wear a monitoring device at all times, to allow an authorised officer to fit, install, repair or remove the monitoring device or any related monitoring equipment, to take steps specified by the Minister and other reasonable steps to ensure that the monitoring device and any related monitoring equipment remains in good working order, and to notify an authorised officer if the BVR holder becomes aware that either the monitoring device or any related monitoring equipment is not in good working order. 133. The purpose of this amendment is to allow the Minister to impose these conditions on BVRs granted to non-citizens in the NZYQ-affected cohort on a discretionary basis, to ensure that the person is available for removal (in the event that removal becomes practicable in the reasonably foreseeable future) and to ensure that the person does not pose a danger to the community in the meantime. Item 9 Clause 8401 of Schedule 8 134. This item provides that after 'specified' in clause 8401 of Schedule 8 to the Migration Regulations, ', orally or in writing,' is inserted. 135. Clause 8401 provides that the holder must report at the time or times, and at a place or in a manner, specified by the Minister from time to time. 136. This amendment clarifies that the holder must report in person and that the Minister may give those instructions either orally or in writing. Item 10 Clause 8542 of Schedule 8 137. This item repeals clause 8542 of Schedule 8 to the Migration Regulations and substitutes a new clause. 138. New clause 8542 provides that the holder must report in person for removal from Australia in accordance with instructions given, orally or in writing, by the Minister to the holder for the purpose of that removal. 139. This amendment clarifies that the Minister may give those instructions either orally or in writing. Item 11 Clause 8543 of Schedule 8 140. This item omits 'by Immigration' in clause 8543 of Schedule 8 to the Migration Regulations and substitutes ', orally or in writing, by the Minister'. 141. Clause 8543, as amended, will provide that the holder must attend at a place, date and time specified, orally or in writing, by the Minister in order to facilitate efforts to arrange and effect his or her removal from Australia. 142. This amendment clarifies that the Minister may specify those matters either orally or in writing. 24

Item 12 Clause 8561 of Schedule 8 143. This item omits 'by the Minister to attend' in clause 8561 of Schedule 8 to the Migration Regulations and inserts ', orally or in writing, by the Minister to attend, at a specified place, on a specified day and at a specified time,'. 144. Clause 8561, as amended, will provide that the holder must comply with a direction by the Minister, given orally or in writing, to attend an interview that relates to the holder's visa at a specified place, on a specified day, and at a specified time. 145. This amendment clarifies that the Minister may give the direction and specify those matters either orally or in writing. Item 13 At the end of Schedule 8 146. This item inserts new visa conditions 8612, 8613, 8614, 8615, 8616, 8617, 8618 and 8619 at the end of Schedule 8 to the Migration Regulations. These conditions must be imposed on a BVR granted under regulation 2.25AA or 2.25AB, or a BVR taken to have been granted under subsection 76A(3) of the Migration Act. Visa condition 8612 147. New visa condition 8612 imposes an obligation on the visa holder. New condition 8612, requires that the visa holder must, within 5 working days of the grant of the visa notify the Department of the full name, date of birth of each person who ordinarily resides with the holder at the visa holder's residential address. 148. In addition, the visa holder must notify the Department of any changes in the person who ordinarily reside with the holder, within 2 days after the change occurs. 149. The purpose of this amendment is to require the visa holder to notify the Department of persons residing with the visa holder. This information relates to the visa holder's associations and may assist in locating the visa holder, and knowledge of household associations that may be relevant to the person's presence in Australia and the Government's efforts to facilitate removal. This assists the Department to manage a person's continued engagement, which is particularly important for resolving their migration status through removal. Visa condition 8613 150. New visa condition 8613 provides that the visa holder must obtain the Minister's approval before commencing to perform work, or a regular organised activity, involving more than incidental interaction with minors or any other vulnerable person. 151. This new condition applies whether the performing work or regular organised activity, and whether or not a working with children or vulnerable people check (however described) is required in relation to the work. 152. The references to 'perform work' and a regular organised activity are intended to expand the scope of activities covered by the condition beyond those provided for by 25

the definition of 'work' in regulation 1.03 of the Migration Regulations (though it would also include activities which meet that definition). 153. The condition is intended to operate in respect of a broad range of activities to ensure that circumstances in which a BVR holder proposes to engage in activities in which it is anticipated they will be in proximity with children or any other vulnerable people is subject to the reporting requirement. This is intended to encompass, for example, volunteering at a junior sports club, working in a retail store for which children are a target audience, babysitting other than on a purely domestic or personal basis that includes more than incidental contact with children. 154. The purpose of this amendment is to support community safety and aligns with the expectations of the Australian community that non-citizens will abide by our rules and laws. This amendment builds upon the requirement that the visa holder must obtain the Minister's approval before taking up employment in specified occupations. Visa condition 8614 155. New visa condition 8614 provides an obligation on the visa holder to notify the Department of any travel interstate or overseas at least 7 working days before undertaking the travel. 156. In circumstances where the visa holder is unable to notify the Department 7 working days before undertaking the travel, the visa holder must notify the Department of any travel undertaken at with 2 working days after departing on the travel. 157. The purpose of this amendment is to ensure the Department is aware of the visa holder's movements that could hamper efforts to remain engaged with the Department to regarding migration status. 158. The condition assists the Department to manage the visa holder's migration status including the visa holder's reporting obligations, including the requirement that the person is available for removal from Australia should removal from Australia become practicable in the reasonably foreseeable future. The condition seeks to mitigate the risk of unreported travel that could hamper efforts of the Government to remain engaged with the visa holder's migration status. Visa condition 8615 159. New visa condition 8615 imposes an obligation on the visa holder to report to the Department details of their association with, or membership of, any club or organisation (other than an organisation formed for a purpose of engaging in communications on governmental or political matters) within 5 working days of grant of the visa. 160. In addition, the visa holder must report any change, including a new association or the end of a previously reported association, to the Department within 2 working days. 161. The purpose of this amendment is to require the visa holder to notify the Department of associations that could impede the Department's ability to affect removals. This condition is also intended to limit risk to the community through appropriate reporting of associations. 26

Visa condition 8616 162. New visa condition 8616 provides that the visa holder must notify the Department of the details of any contact with specified individuals, groups or organisations within 2 working days after the contact occurs, unless the contact was in the course of attending a therapeutic or rehabilitative service, or in connection with legal proceedings or legal advice. The condition applies to contact with: • any individual, group or organisation that is alleged, or is known by the holder, to be engaging in criminal or other illegal activities; or • any individual, group or organisation that has previously engaged in, or has expressed an intention to engage in, criminal or other illegal activities. 163. The purpose of this amendment is to require the visa holder to notify the department of associations that could impede the Commonwealth's ability to affect removals. This condition is also intended to limit risk to the community through appropriate reporting of associations. Visa condition 8617 164. New visa condition 8617 provides that the visa holder must notify the Department of any of the following, within 5 working days, after the matter occurs: • receipt by the holder of money of AUD 10,000 or more, within any period of 30 days, form one or more other persons; • transfer by the holder of money of AUD 10,000 or more, within any period of 30 days, to one or more other persons; • changes in the holder's banking arrangements. 165. This is intended to encompass various forms of transactions, including physical transfer of cash, bank deposits, and remittances. The reference to 'banking arrangements' is intended to include matters such as opening and closing bank accounts. 166. The purpose of this amendment is to impose an obligation on the visa holder to notify the Department of any receipt or transfer of money of AUD 10,000 or changes to their banking arrangements within 5 working days. This information supports the Department to identify circumstances that could prejudice the Department's ability to other regularise the visa holder's status or affect removals. Visa condition 8618 167. New visa condition 8618 provides that the visa holder must notify the Department of any of the following matters within 5 working days of the matter occurring: • the holder incurs a debt or debts totalling AUD 10,000 or more; • the holder is declared bankrupt or otherwise experiences significant financial hardship; 27

• any significant change in relation to the holder's debts, bankruptcy or financial hardship. 168. This information supports the Department to identify circumstances that could prejudice the Department's ability to affect removals. Visa condition 8619 169. New visa condition 8619 provides that the visa holder must within 7 days of receiving an oral or written request from the Minister; provide evidence of the holder's current financial circumstances. 170. The purpose of this amendment is to impose an obligation on the visa holder, to provide the Department with evidence of their financial circumstances if required by the Minister. This would include matters such as current bank accounts held by the person, the deposits within those accounts, any debts, and other matters relating to access to funds. 171. This information supports the Department to identify circumstances that could prejudice the Commonwealth's ability to other regularise the visa holder's status or affect removals. Visa condition 8620 172. New visa condition 8620 provides that the visa holder must remain at the notified address of the holder between 10 pm and 6 am each day or between such other times as are specified by the Minister in writing. 173. Subclause (2) provides that any other times specified by the Minister must not be more than 8 hours apart 174. Subclause (3) defines 'notified address' for a particular day or days to mean any of the following: • the address notified by a holder under conditions 8513 or 8550; • an address at which the holder stays regularly because of a close personal relationship with a person at that address, and which the holder has notified to the Department for these purposes; • an address for that day or those days that the holder has notified to the Department no later than 12 noon on the day before that day or the earliest day of those days, for these purposes. 175. The purpose of this amendment is to impose a requirement for a visa holder to observe a curfew. The duration of the curfew is necessarily limited to a maximum continuous period of 8 hours, with the default hours set at 10 pm to 6 am each day. The Minister could therefore specify alternative periods of 8 hours (for example, 11 pm to 7 am) or periods of less than 8 hours (for example, 11 pm to 5 am). This requirement enhances community protection outcomes for the Australian community and will assist in ensuring the person is available for removal should that become practicable. 28

Visa condition 8621 176. New visa condition 8621 provides that the visa holder must wear a monitoring device at all times. It further imposes various obligations relating to this requirement: • The visa holder must allow an authorised officer to fit, install, repair or remove the holder's monitoring device and any related monitoring equipment for that device. • The visa holder must take any steps specified in writing by the Minister, and any other reasonable steps, to ensure that visa holder's monitoring device and any related monitoring equipment for that device remains in good working order. • If the visa holder becomes aware that either the visa holder's monitoring device and any related monitoring equipment for that device is not in good working order, the holder must notify an authorised officer of that as soon as possible. 177. Subclause (5) defines 'monitoring device' to mean any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object. The subclause defines 'related monitoring equipment' to mean any electronic equipment necessary for operating the monitoring device. 178. The purposes of the proposal to allow electronic monitoring as a condition is to deter the individual from committing further offences whilst holding the BVR, knowing they are being monitored, and thereby keep the community safe. The electronic monitoring will also assist with prevention of absconding behaviour which is contrary to the obligation of the visa holder to engage in the Government's efforts to facilitate their removal. 179. The use of electronic monitoring serves the legitimate obligation where there is a higher likelihood of non-compliance by the visa holder, and provides an alternative avenue for compliance that will be more suitable to some circumstances such as where additional support alone will not prevent reoffending. Part 2 Application Provisions Migration Regulations 1994 Item 14 In the appropriate position in Schedule 13 180. This item inserts new Part 126, which provides for amendments made by the Migration Amendment (Bridging Visa Conditions) Act 2023. 181. New section 12601 of Schedule 13 to the Migration Regulations provides that the amendments made to the Migration Regulations by Part 1 of Schedule 2 apply in relation to a visa granted on or after the commencement of those amendments. 29

Attachment A Statement of Compatibility with Human Rights Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Migration Amendment (Bridging Visa Conditions) Bill 2023 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Bill The Migration Amendment (Bridging Visa Conditions) Bill 2023 (the Bill) amends the Migration Act 1958 (the Migration Act) and the Migration Regulations 1994 (the Migration Regulations) to ensure non-citizens released from immigration detention following the High Court judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (S28/2023) on 8 November 2023 and those in similar circumstances in the future (the NZYQ-affected cohort) are subject to appropriate visa conditions on any bridging visa granted to them following release. The NZYQ-affected cohort is made up of people who have been refused grant of a visa, or had their visa cancelled, and who are on a removal pathway but who have no real prospect of removal becoming practicable in the reasonably foreseeable future. In many cases, the person has a protection finding, within the meaning of section 197C of the Migration Act, which prevents their removal to their country of citizenship or habitual residence and there is currently no other country to which their removal can be effected. A 'protection finding' reflects the circumstances in which Australia has non-refoulement obligations with reference to a person. In other cases, removal is not practicable in the foreseeable future for other reasons, including where the person is stateless and their country of former habitual residence is not willing to accept their return. Of the current known cohort, the majority were refused a visa, or had their visa cancelled, on character grounds. Others in the cohort had their visa cancelled on other grounds, but had not previously been granted a bridging visa due to risks they present to the Australian community. The objective of the amendments in the Bill is to ensure that members of the NZYQ- affected cohort are managed in the community in a way that supports community safety objectives and enables the management of the cohort to a removal outcome once removal becomes reasonably practicable. The amendments to section 76A of the Act have the effect of granting Subclass 070 (Bridging (Removal Pending)) visas (BVR) to members of the cohort who were granted such a visa immediately following the High Court's decision in NZYQ (and ceasing this original visa), and allowing the grant of a BVR to those who are identified as members of the NZYQ-affected cohort subsequently, with a suite of visa conditions that are intended to implement these community safety and cohort management objectives. The BVR is an existing class of visa and holders have work rights and are eligible for Special Benefit (subject to meeting the income and assets tests and demonstrating that they 30

are in financial hardship for reasons beyond their control) and Medicare through Services Australia. BVR holders released from immigration detention are eligible for Status Resolution Support Services (SRSS) to assist their transition to independent living in the community. SRSS may provide short-term accommodation, income support pending Special Benefit grant, health access pending access to Medicare, relocation from detention state to home state and case management to link individuals into mainstream health, welfare, accommodation and employment. The duration and extent of SRSS will depend on the length of detention and individual needs. All visa holders in Australia, including BVR holders, are required to abide by the conditions of their visa. Ordinarily, if a BVR holder breaches a visa condition, their BVR may be subject to cessation or cancellation and if it is ceased or cancelled, the person would be liable for immigration detention as an unlawful non-citizen. If the visa ceases or is cancelled, and the person remains a member of the NZYQ-affected cohort, they cannot be placed in immigration detention under section 189 of the Migration Act. As such, the prospect of visa cancellation for a breach of a visa condition is not an effective deterrent against non-compliance with reporting requirements and other key visa conditions. Therefore, to deter non-compliance with visa conditions, the Bill would establish criminal offences in relation to certain conduct by non-citizens in the NZYQ-affected cohort that constitutes a serious breach of visa conditions. Under the amendments, it would be an offence to not comply with conditions that require the BVR holder to report to a person or place, or to notify the Minister or the Department of changes in circumstances. These conditions for the purposes of maintaining up to date information on the whereabouts and status of the BVR holder, are essential for managing their ongoing stay and facilitating removal as soon as it is reasonably practicable. This offence is intended to reflect the seriousness of a breach of conditions that are intended to ensure the Department, including the Australian Border Force (ABF), remains aware of the non-citizen's location, activities and associations, and that the visa holder remains engaged in arrangements to manage their temporary stay in, and when practicable, removal from, Australia. It will also be an offence if a BVR holder in the NZYQ-affected cohort is required to remain at a certain address during specified times and fails to comply with that condition. A further offence will apply where a BVR holder in the NZYQ-affected cohort is required to wear a monitoring device and fails to wear the device at all times; where they fail to allow an authorised person to fit, install, repair or remove an authorised device; where they fail to ensure the monitoring device and any related monitoring equipment remain in good working order and where they fail to notify an authorised officer that the monitoring device and any related monitoring equipment is not in good working order. The Bill provides that the offences will not apply where the a BVR holder in the NZYQ-affected cohort has a reasonable excuse for not complying with the conditions, with the visa holder bearing the evidential burden for establishing they had a reasonable excuse. Each of the offences carries a maximum penalty of 5 years imprisonment or 300 penalty units. The penalty for the offences reflects the seriousness of the regard that the NZYQ- affected cohort are expected to have towards the conditions imposed on their BVR and reflect the level of protection necessary for community safety and the management of the cohort. 31

Conditions on BVRs for the NZYQ-affected cohort The following conditions will be imposed on BVRs granted to the NZYQ-affected cohort as mandatory conditions. These conditions are currently mandatory for BVRs granted under existing reg 2.25AA: Condition # Description 8550 The holder must notify the Minister of any change in the holder's personal details, including a change to any of the following contact information: (a) the holder's name; (b) an address of the holder; (c) a phone number of the holder; (d) an email address of the holder; (e) an online profile used by the holder; (f) a user name of the holder; not less than 2 working days before the change is to occur. 8551 (1) The holder must obtain the Minister's approval before taking up employment in the following occupations, or occupations of a similar kind: (a) occupations that involve the use of, or access to, chemicals of security concern; (b) occupations in the aviation or maritime industries; (c) occupations at facilities that handle security-sensitive biological agents. (2) In this clause: chemicals of security concern means chemicals specified by the Minister in an instrument in writing for this definition. Note: The Minister's instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify, the chemicals may include: (a) industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and (b) agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities. 32

8552 The holder must notify the Minister of any change in the holder's employment details, not less than 2 working days before the change is to occur. 8553 The holder must not become involved in activities that are prejudicial to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979). 8554 (1) The holder must not acquire any of the following goods: (a) weapons; (b) explosives; (c) material or documentation that provides instruction on the use of weapons or explosives. (2) In this clause: weapon means a thing made or adapted for use for inflicting bodily injury. 8555 The holder must obtain the Minister's approval before undertaking the following activities, or activities of a similar kind: (a) flight training; (b) flying aircraft. 8556 The holder must not communicate or associate with: (a) an entity listed under Part 4 of the Charter of the United Nations Act 1945; or (b) an organisation prescribed by the regulations made under the Criminal Code Act 1995 for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code. 8560 (1) The holder must obtain the Minister's approval before acquiring chemicals of security concern. (2) In this clause: chemicals of security concern means chemicals specified by the Minister in an instrument in writing for this definition. Note: The Minister's instrument will refer to chemicals that have been identified, by the Council of Australian Governments, as chemicals of security concern. Without limiting what the Council might identify, the chemicals may include: 33

(a) industrial chemicals, including chemicals used in the retail, pharmaceutical or pool and spa sectors, that could be diverted from their lawful use to other purposes such as terrorist-related activities; and (b) agricultural and veterinary chemicals that could be diverted from their lawful use to other purposes, including terrorist-related activities. 8561 If the holder is directed by the Minister to attend an interview that relates to the holder's visa (including an interview with the Australian Security Intelligence Organisation), the holder must comply with the direction. 8562 (1) The holder must not take up employment in: (a) occupations that involve the use of, or access to, weapons or explosives; or (b) occupations of a similar kind. (2) In this clause: weapon means a thing made or adapted for use for inflicting bodily injury. 8563 (1) The holder must not undertake the following activities, or activities of a similar kind: (a) using or accessing weapons or explosives; (b) participating in training in the use of weapons or explosives; (c) possessing or accessing material or documentation that provides instruction on the use of weapons or explosives. (2) In this clause: weapon means a thing made or adapted for use for inflicting bodily injury. The Bill will amend the Regulations to add the following mandatory conditions to a BVR granted to the NZYQ-affected cohort: 8612 The holder: (a) must, within 5 working days of the grant, notify Immigration of the full name, and date of birth, of each person who ordinarily resides with the holder at the holder's residential address; and (b) must notify Immigration of any change in the persons who ordinarily reside with the holder at the holder's residential address within 2 working days after the change occurs. 34

(1) The holder must obtain the Minister's approval before commencing 8613 to perform work, or a regular organised activity, involving more than incidental contact with a minor or any other vulnerable person. (2) Subclause (1) applies: (a) whether the work or activity is for reward or otherwise; and (b) whether or not a working with children or vulnerable people check (however described) is required in relation to the work (1) The holder must notify Immigration of any travel interstate or 8614 overseas by the holder at least 7 working days before undertaking the travel. (2) If the holder does not comply with subclause (1), the holder must notify Immigration of the travel within 2 working days after departing on the travel. The holder: 8615 (a) must, within 5 working days of the grant, notify Immigration of the details of the holder's association with, or membership of, any organisation (other than an organisation formed for a purpose of engaging in communications on governmental or political matters); and (b) must notify Immigration of any change in those details (including the beginning or end of any association or membership) within 2 working days after the change occurs. (1) The holder must notify Immigration of the details of any 8616 contact with the following within 2 working days after the contact occurs: (a) any individual, group or organisation that is alleged, or is known by the holder, to be engaging in criminal or other illegal activities; (b) any individual, group or organisation that has previously engaged in, or has expressed an intention to engage in, criminal or other illegal activities. (2) Subclause (1) does not apply to: 35

(a) contact in the course of attending a therapeutic or rehabilitative service; or (b) contact in connection with legal proceedings or legal advice. The holder must notify Immigration of each of the following 8617 matters within 5 working days after the matter occurs: (a) the holder receives, within any period of 30 days, an amount or amounts totalling AUD10 000 or more from one or more other persons; (b) the holder transfers, within any period of 30 days, an amount or amounts totalling AUD10 000 or more to one or more other persons; (c) the holder's banking arrangements change. (1) If the holder incurs a debt or debts totalling AUD10 000 8618 or more, the holder must notify Immigration within 5 working days after the holder incurs the debt or debts. (2) If the holder is declared bankrupt or otherwise experiences significant financial hardship, the holder must notify Immigration within 5 working days after the holder is so declared or the financial hardship begins, as the case may be. (3) The holder must notify Immigration of any significant change in relation to the holder's debts, bankruptcy or financial hardship within 5 working days after the change occurs. The holder must, within 7 days after receiving an oral or written request 8619 from the Minister, provide evidence of the holder's current financial circumstances. The Bill will also amend the Regulations to add a power for the Minster, acting personally, to impose either or both of the following discretionary conditions to a BVR granted to the NZYQ-affected cohort: (1) The holder must, between 10 pm on one day and 6 am the next 8620 day or between such other times as are specified in writing by 36

the Minister, remain at a notified address for the holder for those days. (2) If the Minister specifies other times for the purposes of subclause (1), the times must not be more than 8 hours apart. (3) In this clause: notified address for a holder for a particular day or days means any of the following: (a) the address notified by the holder under condition 8513 or 8550; (b) an address at which the holder stays regularly because of a close personal relationship with a person at that address, and which the holder has notified to Immigration for the purposes of this paragraph; (c) if, for the purposes of this paragraph, the holder notifies Immigration of an address for that day or those days no later than 12 pm on the day before that day or the earliest day of those days (as the case may be)--that address. (4) The holder must wear a monitoring device at all times. 8621 (5) The holder must allow an authorised officer to fit, install, repair or remove the following: (a) the holder's monitoring device; (b) any related monitoring equipment for the holder's monitoring device. (6) The holder must take any steps specified in writing by the Minister, and any other reasonable steps, to ensure that the following remain in good working order: (a) the holder's monitoring device; (b) any related monitoring equipment for the holder's monitoring device. (7) If the holder becomes aware that either of the following is not in good working order: (a) the holder's monitoring device; 37

(b) any related monitoring equipment for the holder's monitoring device; (c) the holder must notify an authorised officer of that as soon as practicable. (8) In this clause: monitoring device means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object. related monitoring equipment, for a monitoring device, means any electronic equipment necessary for operating the monitoring device. Ordinarily, where a visa is granted, and discretionary conditions are imposed, no procedural fairness is provided to the visa holder to challenge the imposition of those conditions. In light of the nature of these additional discretionary conditions that the Minister may personally impose on a BVR holder in the NZYQ-affected cohort, the Bill provides for a mechanism for the person to seek to have one or both conditions revoked, and clarifies that procedural fairness does not attach to the initial decision to grant a BVR with these conditions, in light of the need for the Minister to act quickly in the interests of protecting the Australian community. Human rights implications This Bill engages the following rights and obligations: • The rights of equality and non-discrimination in Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR) and Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) • The right to privacy in Article 17 of the ICCPR • Right to liberty in Article 9 of the ICCPR • The right to freedom of movement in Article 12 of the ICCPR • The right to the presumption of innocence and minimum guarantees in criminal proceedings in Article 14 of the ICCPR • The right to freedom of assembly and association contained in Article 22 of the ICCPR • The right to work in Article 6 of the ICESCR. • Rights in relation to the expulsion of aliens in Article 13 of the ICCPR • Non-refoulement obligations arising in respect of Articles 6 and 7 of the ICCPR and in Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) Equality and non-discrimination 182. Article 2(1) of the ICCPR states: 38

183. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 of the ICCPR states: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 2(2) of the ICESCR states: The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In its General Comment 18, the UN Human Rights Committee (UNHRC) stated that: The Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the [ICCPR]. Similarly, in its General Comment on Article 2 of the ICESCR, the UN Committee on Economic, Social and Cultural Rights has stated (at 13) that: Differential treatment based on prohibited grounds will be viewed as discriminatory unless the justification for differentiation is reasonable and objective. This will include an assessment as to whether the aim and effects of the measures or omissions are legitimate, compatible with the nature of the [ICESCR] rights and solely for the purpose of promoting the general welfare in a democratic society. In addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realized and the measures or omissions and their effects. Neither the ICCPR nor the ICESCR give a right for non-citizens to enter Australia. The UNHRC, in its General Comment 15 on the position of aliens under the ICCPR, stated that: The [ICCPR] does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the [ICCPR] even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise. Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment. A State may also impose general conditions upon an alien who is in transit. However, once aliens are allowed to enter the territory of a State party they are entitled to the rights set out in the [ICCPR]. 39

As such, Australia is able to set requirements for the entry and stay of non-citizens in Australia, and does so on the basis of reasonable and objective criteria. The amendments made by the Bill will allow for the imposition of new visa conditions, including by way of ceasing an earlier BVR and granting a new BVR with additional conditions, and the creation of offences relating to breaches of certain visa conditions, that will only apply to members of the NZYQ-affected cohort and not to other visa holders. The measures introduced by these amendments also impose requirements on members of this cohort that would not apply to Australian citizens who have previously offended. The Government considers the imposition of these requirements to be reasonable and necessary both for the purposes of community safety and to ensure that members of this cohort remain engaged in arrangements to manage their temporary stay in, and when practicable removal from, Australia. As noted in the overview, the members of the NZYQ- affected cohort have no substantive visa to remain in Australia, having had their visa applications refused, or a visa cancelled, in most cases on character grounds, and who had not previously been granted a bridging visa due to risks they may pose to the Australian community. In addition, as the NZYQ-affected cohort are not subject to immigration detention, the usual potential consequences for breaching visa conditions, which is cancellation of the visa to permit removal Australia from Australia, and immigration detention pending that removal, are not an effective deterrent against non-compliance with reporting requirements and other key visa conditions. As such, the Government considers these measures to be proportionate to the particular circumstances of the NZYQ-affected cohort compared to both other visa holders and Australian citizens who may pose community protection risks. Rights relating to privacy Article 17(1) of the ICCPR states: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Pursuant to Article 17(1) of the ICCPR, any interference with an individual's privacy must have a lawful basis. In addition to requiring a lawful basis for limitation on the right to privacy, Article 17 prohibits arbitrary interference with privacy. Interference which is lawful may nonetheless be arbitrary where that interference is not in accordance with the objectives of the ICCPR and is not reasonable in the circumstances. New mandatory conditions This right is engaged by amending the regulations to mandatorily impose conditions 8550, 8552, 8612, 8614, 8615, 8616, 8617, 8618 and 8620 on BVRs granted to the NZYQ- affected cohort. This will require the visa holder to report specified personal information to the Department. Such information will include: • the visa holder's address and any change of address, • details of household members and any changes to household members • the place and nature of employment 40

• interstate or overseas travel • association or membership of an organisation • any contact with an individual, group or organisation engaging in, previously engaged in or has expressed an intention to engaged in criminal or illegal activities, and • significant financial transactions or debts and details of bankruptcy or financial hardship. Regular reporting assists the Department monitor a visa holder's personal situation and commence compliance action if necessary in the individual's circumstances. The objective of the conditions is to support community safety objectives and enable the management of the cohort to a removal outcome once removal becomes reasonably practicable. To ensure that the NZYQ-affected cohort remain connected with the Department, it is reasonable and necessary they provide and update information about their residence, contact details, travel and employment. Considering that a proportion of the NZYQ-affected cohort also present community safety concerns, it is reasonable and necessary that visa holders provide information that allow the Department to ascertain whether certain risk factors, such as significant financial transactions or debts, or engagement with criminal groups or organisations, increase the potential likelihood of the visa holder becoming a risk to the Australian community. The conditions currently available are insufficient to mitigate the risk posed to community safety by members of the NZYQ-affected cohort. Additional conditions are also required to emphasise the Australian government's expectations regarding a person's conduct in the community and consequences for failing to meet those expectations. This includes an expectation not to engage in criminal behaviour. Accordingly, while these requirements limit the right to privacy, the limitation is reasonable and necessary due to the high risk the individuals pose to public safety and the need for the NZYQ-affected cohort to remain engaged with the department to progress removal options. There are adequate protections in place with regard to the Department's collection, use and disclosure of an individual's personal information, which is undertaken in accordance with, and subject to, domestic laws (including the Privacy Act 1988 and the Australian Border Force Act 2015). New discretionary conditions The Bill will also amend the Regulations to introduce new discretionary condition 8621, which may be placed on a BVR granted to a member of the NZYQ-affected cohort. Where the condition is imposed, the visa holder must wear a monitoring device at all times, allow authorised officer to fit, install, repair or remove the monitoring device and, if they become aware that the monitoring device is not in order, notify an authorised officer as soon as practicable. Failure to comply with this condition amounts to an offence as set out proposed section 76D. The purposes of the proposal to allow electronic monitoring as a condition is to deter the individual from committing further offences whilst holding the BVR, knowing they are being monitored, and thereby keep the community safe. The electronic monitoring will also assist with prevention of absconding behaviour which is contrary to the obligation of the visa holder to engage in the Government's efforts to facilitate their removal. 41

If imposed, this condition will limit the visa holder's right to privacy, as such devices record and monitor the movements of a person. However, the limitation on the right to privacy is reasonable and necessary to ensure the protection of the Australian community. Attachment of condition 8621 to a BVR is discretionary, and that discretion must be exercised reasonably, for example taking into consideration the individual circumstances (including the capacity to maintain the equipment or lack of appropriate supports) and risk profile of the prospective visa holder as well as community safety and the rights and protection of others. The measure is also proportionate, as the condition will not be mandatory for all BVRs granted to the NZYQ-affected cohort, but only those whose individual circumstances the Minister considers require enhanced monitoring to ensure community safety. Any reduction in non-compliance and crime associated with this cohort means reducing the costs of criminal offending to the community, and supports the legitimate objective of protecting the rights of the victims of crime. Taking all these factors into account, the importance of reducing absconding and recidivism through electronic monitoring means that where the Minister exercises the discretion to impose this condition, this would represent a reasonable, necessary and proportionate limitation on the right to privacy. The right to liberty Article 9(1) of the ICCPR states: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. The purpose of the Migration Act, as set out in section 4, is to "regulate, in the national interest, the coming into, and presence in, Australia of non-citizens". Members of the NZYQ-affected cohort cannot be detained under section 189 of the Migration Act for as long as there is no real prospect of removal becoming practicable in the reasonably foreseeable future. Once the Minister is satisfied that removal is reasonably practicable and, subject to the requirements of common law natural justice, issues a BVR holder with a notice to this effect, the BVR will cease in line with existing requirements for BVR holders. This means that the person will become an unlawful non-citizen and subject to immigration detention pending their removal. Detention during this period would be for the purpose of effecting the person's removal, including to manage risks of absconding, and it would also remain open to Minister, or the Minister's delegate in some cases, to grant the person a further bridging visa pending their removal depending on the individual circumstances of the person's case. As such, once the person is no longer a member of the NZYQ-affected cohort, their immigration detention would not be arbitrary. The liberty of a member of the NZYQ-affected cohort may also be affected by the new offences which would be created by the Bill and which carry penalties including terms of imprisonment. However, any term of imprisonment imposed for these offences would follow conviction by a court and would be imposed by the Court in consideration of the seriousness of the person's offending and the individual circumstances of their case. As noted above, the courts are able to take a wide range of factors into account when considering whether to impose a term of imprisonment and in determining the appropriate 42

length of sentence. As such, any term of imprisonment following a conviction for a breach of a conviction would not constitute arbitrary detention. The only less rights restrictive alternative that would not engage the right to liberty would be to not have a term of imprisonment attached to a breach of the conditions. However, a pecuniary only offence would not reflect the seriousness of the expectation the BVR holders adhere to the conditions of their visa or the need to ensure public safety. Imprisonment as a penalty for a breach of a condition is intended to act as an incentive to comply with conditions that are intended to ensure community safety. Imposition of a Curfew In its General Comment 35 on Article 9 of the ICCPR, the UNHRC stated that: Deprivation of liberty involves more severe restriction of motion within a narrower space than mere interference with liberty of movement under article 12. Examples of deprivation of liberty include police custody, arraigo, mind detention, imprisonment after conviction, house arrest, administrative detention, involuntary hospitalisation, institutional custody of children in confinement to a restricted area of an airport, as well as being involuntarily transported. The Parliamentary Joint Committee on Human Rights has previously observed (in the context of control orders), in its Thirty-second Report or the 44th Parliament and with reference to General Comment 35, that: In addition, a control order may include a requirement th will at a person be confined to a particular place and subject to a curfew of up to 12 hours in a 24 hour period. This would appear to meet the definition of detention (or deprivation of liberty) under international human rights law, which is much broader than being placed in prison. The Committee went on to suggest: In assessing what constitutes a deprivation of liberty, the issue is the length of the period for which the individual is confined to their residence. Other restrictions imposed under a control order, which contribute to the controlee's social isolation, may also be taken into account along with the period of the curfew. The intention of the power is that it be exercised as proportionate to the community in safety risk posed, and in relation to the individual circumstances of the BVR visa holder. The curfew limits the ability of visa holder to depart the place at which they are required to be during the curfew hours (which would ordinarily be the person's residential address, but can also be the address of a person with whom the visa holder has a close personal relationship or another address nominated by the BVR holder on the relevant day, and could, for example, be a place of employment or the house of a friend or relative). The maximum duration of the curfew is 8 hours (10pm to 6am or as otherwise specified by the Minister, but not exceeding 8 hours) for the day or days specified by the Minister and no other additional controls on the behaviour of the BVR holder during the hours of curfew will be imposed by this condition. This ensures that the hours of the curfew are not unreasonably long and allow for normal daily activity, as well as ensuring the visa holder can still access community services, employment, and other relevant supports, and is consistent with the legitimate objective of community safety, and the rights and interests of the public, especially vulnerable members of the public. 43

The imposition of a curfew would persist only for the number of days required to effect community safety, according to the specific circumstances of the case. In addition, the Bill would provide a mechanism for the person to seek to have the imposition of the condition revoked. Importantly, while breach of the curfew would constitute a criminal offence, with a defence of reasonable excuse available in addition to other standard defences, there are no additional physical controls preventing the person from departing the place where they are spending their curfew hours, such as fences, controlled entry/exit, guards or a police presence. The curfew would have the community protection purpose of regulating the behaviour of BVR holders who have, for example, been assessed to fail the character test and to be of particular concern to the Minister will in terms of future criminal offending. Therefore any deprivation of liberty that the curfew may constitute, would be intended to protect public order and the rights and freedoms of others, and would not be arbitrary and be necessary, reasonable and proportionate to achieving that objective. Rights relating to the freedom of movement Article 12 of the ICCPR relevantly states: 1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. ... 3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant. Article 12 concerns those lawfully within the territory of a State, and BVR holders subject to the conditions will be considered to be lawfully residing in the community. While condition 8614 (which requires holders of a BVR visa in the NZYQ-affected cohort to notify Immigration of any interstate or overseas travel at least seven working days before undertaking the travel or within two working days after departing on the travel notify) places limitations on this right, the limitation is reasonable, necessary and proportionate when balanced against community protection concerns. The condition does, not in itself, restrict an individual's freedom of movement but rather requires that the travel be notified to Immigration ahead of the planned travel. The mandating of this condition for BVRs granted to the NZYQ-affected cohort is necessary as it allows the Department to closely monitor the circumstances of the individual and respond appropriately if the individual engages in behaviour that may put the Australian community or public order at risk. In light of the community protection considerations required for this cohort, the introduction of this mandatory condition represents the least rights restrictive measure available to protect community safety following the grant of a BVR. The imposition of a reporting obligation prior to travel is the least restrictive measure that is no more than is reasonably necessary to achieve its objective, and does not amount to a restriction on movements such as an obligation to seek approval prior to travel. The 44

obligation to report travel is necessary for the legitimate purpose of being able to locate the visa holder for the purpose of resolving the visa holder's migration status and their participation in removal efforts. Imposition of a Curfew The amendments in the Bill would provide the Minister, acting personally, with a discretion to impose a curfew as a condition on the BVR where the Minister considered it appropriate. Such a decision would be made having regard to factors such as the risk to the community posed by the presence of that individual within the community. The curfew would require that the BVR holder remain in one specified location during the curfew hours which are 10pm to 6am, or as otherwise specified by the Minister, but not exceeding 8 hours The BVR holder would be able to nominate the address at which they would remain during curfew hours, which would ordinarily be the person's residential address, but can also be the address of a person with whom the visa holder has a close personal relationship or another address nominated by the BVR holder on the relevant day, and could, for example, be a place of employment or the house of a friend or relative. This means that although the person would be required to remain in one place during the curfew hours, the curfew would not restrict their ability to choose where they spent it, who else could be there or limit their movements for most of each 24 hour period, thereby allowing normal daily activities. The defence of reasonable excuse available in relation to the associated offence, in addition to other standard defences, has the effect that the imposition of a curfew would also not restrict their ability to leave that place for example in an emergency situation and/or to seek medical attention, Further, the Bill would provide a mechanism for the person to seek to have the imposition of the condition revoked. The curfew would have the community protection purpose of regulating the behaviour of BVR holders who have, for example, been assessed to fail the character test and to be of particular concern to the Minister in terms of future criminal offending. Therefore the limitations on movement would be intended to protect public order and the rights and freedoms of others, in accordance with the permissible limitations set out in Article 12(3). Presumption of innocence and criminal process guarantees Article 14 of the ICCPR relevantly provides: 1) All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law ... 2) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. ... The amendments made by the Bill create a new criminal offence relating to breaches of certain mandatory visa conditions requiring notification of a matter the Minister to Department, reporting to a person or place or attendance at a specified place and of the discretionary visa conditions relating to the requirement to remain at a specified address and to monitoring devices and related monitoring equipment that will apply only to members of the NZYQ-affected cohort, and will not apply to other visa holders. A person 45

will not commit an offence if they have a reasonable excuse for failure to comply with the requirement of the mandatory or discretionary condition. Existing standard defences in the Criminal Code will also apply. Any charges brought as a result of these offences will be subject to existing criminal procedures and subject to judicial determination. The offences do not impose minimum sentences and in reaching its decision following a finding of guilt it is open to the court to take into account a wide range of factors, both aggravating and mitigating, to inform its view. Factors such as the nature and severity of the non-compliance, how much time has passed since the reporting requirement was issued, repeated breaches of visa conditions, degree of contact with the Department, and the degree of steps taken to remediate non-compliance, or ensure future compliance with the requirement, are examples of factors that the courts may wish to take into consideration. The offences carry a maximum penalty of 5 years imprisonment or 300 penalty units. The purpose of the maximum penalty available for the offences established by proposed sections 76B, 76C, and 76D is to appropriately reflect the seriousness of these offences and the need to make clear that non-compliance with visa conditions that are aimed at protecting community safety is viewed seriously. The maximum penalty provides flexibility for courts to consider individual circumstances and treat different cases differently, according to the circumstances of the offending. The visa holder accused of non-compliance with a relevant condition will bear the evidential burden in relation to whether they have a reasonable excuse for their non- compliance. This is reasonable and necessary in circumstances where, given the nature of the conduct subject of the conditions, the visa holder will have knowledge of the circumstances of their non-compliance, such that the visa holder is best placed to furnish to the court the details of the reasonable excuse. Consequently, the reverse burden in relation to the reasonable excuse provision does not limit the right to the presumption of innocence, as it is reasonable, necessary and proportionate in circumstances where the offender is best placed to provide the evidence of their reasonable excuse. The creation of these offences is intended to assist in ensuring compliance with conditions related to monitoring, and is intended to reflect the seriousness of a breach of conditions, which are imposed to ensure the Department, including the Australian Border Force (ABF), remains aware of the non-citizen's location, activities and associations, and that the visa holder remains engaged in arrangements to manage their temporary stay in, and when practicable, removal from, Australia. The Government considers that the additional visa conditions and new offences are proportionate to the aim of mitigating risks to the Australian community posed by such non-citizens, who are on a removal pathway but who cannot remain in detention pending removal because there is no real prospect of their removal being practicable in the reasonably foreseeable future. The right to freedom of assembly and association Article 22 of the ICCPR relevantly states: 1) Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. 46

2) No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others ... Amending the regulations will allow the mandatory imposition of conditions 8556, 8615 and 8616 on NZYQ-affected BVR visa holders. These conditions respectively: • Prohibit a visa holder from communicating or associating with an entity listed under Part 4 of the Charter of the United Nations Act 1945; or an organisation prescribed by the regulations made under the Criminal Code Act 1995 for the purposes of paragraph (b) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code. • Require the visa holder to report the details of their association with, or membership of, any club or organisation, as well as any new association or the end of a previously reported association. • Require the visa holder to notify the department of any affiliation or contact with any individual, group or organisation that is alleged, known or reputed to be, or has expressed an interest in, engaging in criminal or illegal activities. These mandatory conditions will engage and limit the right to freedom of association. However, it is reasonable, necessary and proportionate to achieve the legitimate objective of protecting national security and public safety. It is reasonable and necessary to prohibit the NZYQ-affected cohort from communicating with entities listed under the Charter of the United Nations Act 1945 or with terrorist organisations. It is reasonable that an appropriate level of restriction should apply for non-citizens and any association with terrorist organisations. Similarly, given the likelihood of relevant criminal activity by some within the NZYQ-affected cohort, it is reasonable, necessary and proportionate that they be required to report any contact with individuals, groups or organisations involved in, or likely to be involved in, criminal or illegal activities as a condition of their visa. To the extent that being required to report such activity limits the visa holder's freedom of association, for concerns of the consequences of reporting contact, the limitation is reasonable and necessary to ensure that visa holders do not engage in criminal or illegal activities through the association with individuals, groups or organisations that do. The requirement to report such contact is intended to act as a disincentive to associate with individual, groups or organisations that are or may be involved in criminal or illegal activities. The requirement to report details of an association or membership with an organisation is also reasonable, necessary and proportionate. The reporting condition does not prevent the visa holder from having the association or require them to cease the association or membership. Reporting such memberships will enable the Department to monitor the involvement of the NZYQ-affected cohort in organisations that potentially raise significant community safety concerns or involve contact with vulnerable persons. It also provides the Department with an awareness of organisations that BVR holders in the NZYQ-affected cohort are members of that may positively impact on applications for third country resettlement. 47

These reporting obligations support the legitimate objective of supporting Australia's managed migration system, while providing a disincentive for association with entities that may hamper the Government's objective of resolving the visa holder's status by way of third country resettlement. The reporting obligation achieves this objective in the least rights restrictive way. Rights relating to work Article 6(1) of the ICESCR provides: The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right The Bill amends the Regulations to impose conditions 8551, 8555, 8560 and 8562, 8613 as mandatory conditions for BVRs granted to the NZYQ-affected cohort. These conditions prohibit the visa holder from taking up certain high risk employment or require the Minister to approve certain high risk occupations prior to commencement. High risk employment includes working with, or having contact with, vulnerable members of the Australian community. The amendment of the regulations may limit the work rights provided for in the ICESCR to the extent that a NZYQ-affected cohort seeks approval from the Minister to engage in a particular occupation and approval is refused. Importantly, the work restriction protects the rights of vulnerable people including children, and this protective factor is weighed against the impact on the BVR holder in being required to seek and obtain ministerial approval. While these conditions will apply to all NZYQ-affected cohort, they are the least rights restrictive option, as it is possible for the Minister to approve employment under conditions 8551, 8555 8560, and 8613. Any limitation of this right is necessary considering the individual circumstances of the cohort. The measure is proportionate to the potential risk posed by each individual to public safety. The right to work does not guarantee an individual a right to a particular job and the relevant conditions do not stop the visa holder from engaging in any kind of employment, they only require the approval of the Minister to engage in certain kinds of employment that have a high risk to national security, public order and public safety. The imposition of work-related conditions for the NZYQ-affected cohort emphasises that the Government is committed to reducing community risk while also promoting the legitimate objective of resolving the non-citizen's migration status by reducing exposure to work that may hinder options for resettlement in third countries. Expulsion of aliens Article 13 of the ICCPR states: An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority. Under international law, Australia has the right to take reasonable steps to control the entry and stay of aliens. The amendments apply the existing scheme for the cessation of 48

BVRs once removal becomes reasonably practicable to the members of the NZYQ- affected cohort. This occurs when the Minister gives written notice to the BVR holder stating that the Minister is satisfied that the holder's removal from Australia is reasonably practicable. As the cessation of the BVR in these circumstances is intended to effect the person's expulsion, the processes are in accordance with Article 13 in that the exercise of the power to issue this written notice is subject to common law natural justice requirements and to judicial review. Non-refoulement Article 6 of the ICCPR states: Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. Article 7 of the ICCPR states: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. Article 3(1) of the CAT states: No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. As noted in the overview, a considerable proportion of the NZYQ-affected cohort have a 'protection finding'. The Migration Act (subsection 197C(3)) ensures that removal to the country by reference to which a 'protection finding' was made in the course of considering the person's most recent protection visa application is not required or authorised unless the decision in which the protection finding was made is quashed or set aside, the person requests voluntary removal or the person is found, under section 197D of the Migration Act, to be a person in respect of whom a protection finding would no longer be made. This could be in circumstances where, for example, country conditions have significantly improved such that the person no longer faces a real risk of the relevant harm. Removal to the country by reference to which a 'protection finding' was made is also not authorised or required while merits review of a decision under section 197D of the Migration Act is ongoing. Since a 'protection finding' reflects the circumstances in which Australia's non-refoulement obligations are engaged, this ensures that members of the NZYQ-affected cohort who have a 'protection finding' will not be removed from Australia in breach of Australia's non-refoulement obligations if they are or become an unlawful non-citizen, for example following cessation of their BVR. For any member of the cohort who does not have a 'protection finding' but makes protection claims, there will be opportunity to have those claims considered though a protection visa process or through consideration of ministerial intervention pathways where relevant. Conclusion The measures in this Bill are compatible with human rights as, to the extent they limit some human rights, those limitations are reasonable, necessary and proportionate to the 49

objectives of community safety, the effective management of the migration status of members of this cohort, and to reinforce expectations about the purpose of the BVR including reporting and notification obligations to assist with ongoing engagement. The Hon Andrew Giles MP Minister for Immigration, Citizenship and Multicultural Affairs 50

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